On July 14, in his syndicated column, Chicago Sun-Times journalist
Robert Novak reported that Valerie Plame Wilson - the wife of
former ambassador Joseph C. Wilson IV, and mother of three-year-old
twins - was a covert CIA agent. (She had been known to her friends
as an "energy analyst at a private firm.")

Why was Novak able to learn this highly secret information?
It turns out that he didn't have to dig for it. Rather, he has
said, the "two senior Administration officials" he
had cited as sources sought him out, eager to let him know. And
in journalism, that phrase is a term of art reserved for a vice
president, cabinet officers, and top White House officials.

On July 17, Time magazine published the same story, attributing
it to "government officials." And on July 22, Newsday's
Washington Bureau confirmed "that Valerie Plame ... works
at the agency [CIA] on weapons of mass destruction issues in
an undercover capacity." More specifically, according to
a "senior intelligence official," Newsday reported,
she worked in the "Directorate of Operations [as an] undercover
officer."

In other words, Wilson is/was a spy involved in the clandestine
collection of foreign intelligence, covert operations and espionage.
She is/was part of a elite corps, the best and brightest, and
among those willing to take great risk for their country. Now
she has herself been placed at great - and needless - risk.

Why is the Administration so avidly leaking this information?
The answer is clear. Former ambassador Wilson is famous, lately,
for telling the truth about the Bush Administration's bogus claim
that Niger uranium had gone to Saddam Hussein. And the Bush Administration
is punishing Wilson by targeting his wife. It is also sending
a message to others who might dare to defy it, and reveal the
truth.

No doubt the CIA, and Mrs. Wilson, have many years, and much
effort, invested in her career and skills. Her future, if not
her safety, are now in jeopardy.

After reading Novak's column, The Nation's Washington Editor,
David Corn, asked, "Did senior Bush officials blow the cover
of a US intelligence officer working covertly in a field of vital
importance to national security--and break the law--in order
to strike at a Bush administration critic and intimidate others?"

The answer is plainly yes. Now the question is, will they
get away with it?

Bits and pieces of information have emerged, but the story
is far from complete. Nonetheless, what has surfaced is repulsive.
If I thought I had seen dirty political tricks as nasty and vile
as they could get at the Nixon White House, I was wrong. The
American Prospect's observation that "we are very much into
Nixon territory here" with this story is an understatement.

Indeed, this is arguably worse. Nixon never set up a hit on
one of his enemies' wives.

Leaking the Name of a CIA Agent Is a Crime

On July 22, Ambassador Wilson appeared on the Today show.
Katie Couric asked him about his wife: "How damaging would
this be to your wife's work?"

Wilson - who, not surprisingly, has refused to confirm or
deny that his wife was a CIA operative - answered Katie "hypothetically."
He explained, "it would be damaging not just to her career,
since she's been married to me, but since they mentioned her
by her maiden name, to her entire career. So it would be her
entire network that she may have established, any operations,
any programs or projects she was working on. It's a--it's a breach
of national security. My understanding is it may, in fact, be
a violation of American law."

And, indeed, it is.

The Espionage Act of 1917 and the Intelligence Identities
and Protection Act of 1982 may both apply. Given the scant facts,
it is difficult to know which might be more applicable. But as
Senator Schumer (D.NY) said, in calling for an FBI investigation,
if the reported facts are true, there has been a crime. The only
question is: Whodunit?

The Espionage Act of 1917

The Reagan Administration effectively used the Espionage Act
of 1917 to prosecute a leak - to the horror of the news media.
It was a case that was instituted to make a point, and establish
the law, and it did just that in spades.

In July 1984, Samuel Morrison - the grandson of the eminent
naval historian with the same name - leaked three classified
photos to Jane's Defense Weekly. The photos were of the Soviet
Union's first nuclear-powered aircraft carrier, which had been
taken by a U.S. spy satellite.

Although the photos compromised no national security secrets,
and were not given to enemy agents, the Reagan Administration
prosecuted the leak. That raised the question: Must the leaker
have an evil purpose to be prosecuted?

The Administration argued that the answer was no. As with
Britain's Official Secrets Acts, the leak of classified material
alone was enough to trigger imprisonment for up to ten years
and fines. And the United States Court of Appeals for the Fourth
Circuit agreed. It held that the such a leak might be prompted
by "the most laudable motives, or any motive at all,"
and it would still be a crime. As a result, Morrison went to
jail.

The Espionage Act, though thrice amended since then, continues
to criminalize leaks of classified information, regardless of
the reason for the leak. Accordingly, the "two senior administration
officials" who leaked the classified information of Mrs.
Wilson's work at the CIA to Robert Novak (and, it seems, others)
have committed a federal crime.

The Intelligence Identities and Protection Act

Another applicable criminal statute is the Intelligence Identities
Act, enacted in 1982. The law has been employed in the past.
For instance, a low-level CIA clerk was convicted for sharing
the identify of CIA employees with her boyfriend, when she was
stationed in Ghana. She pled guilty and received a two-year jail
sentence. (Other have also been charged with violations, but
have pleaded to unrelated counts of the indictment.)

The Act reaches outsiders who engage in "a pattern of
activities" intended to reveal the identities of covert
operatives (assuming such identities are not public information,
which is virtually always the case).

But so far, there is no evidence that any journalist has engaged
in such a pattern. Accepting Administration leaks - even repeatedly
- should not count as a violation, for First Amendment reasons.

The Act primarily reaches insiders with classified intelligence,
those privy to the identity of covert agents. It addresses two
kinds of insiders.

First, there are those with direct access to the classified
information about the "covert agents." who leak it.
These insiders - including persons in the CIA - may serve up
to ten years in jail for leaking this information.

Second, there are those who are authorized to have classified
information and learn it, and then leak it. These insiders -
including persons in, say, the White House or Defense Department
- can be sentenced to up to five years in jail for such leaks.

The statute also has additional requirements before the leak
of the identity of a "covert agent" is deemed criminal.
But it appears they are all satisfied here.

First, the leak must be to a person "not authorized to
receive classified information." Any journalist - including
Novak and Time - plainly fits.

Second, the insider must know that the information being disclosed
identifies a "covert agent." In this case, that's obvious,
since Novak was told this fact.

Third, the insider must know that the U.S. government is "taking
affirmative measures to conceal such covert agent's intelligence
relationship to the United States." For persons with Top
Secret security clearances, that's a no-brainer: They have been
briefed, and have signed pledges of secrecy, and it is widely
known by senior officials that the CIA goes to great effort to
keep the names of its agents secret.

A final requirement relates to the "covert agent"
herself. She must either be serving outside the United States,
or have served outside the United States in the last five years.
It seems very likely that Mrs. Wilson fulfills the latter condition
- but the specific facts on this point have not yet been reported.

How the Law Protects Covert Agents' Identities

What is not in doubt, is that Mrs. Wilson's identity was classified,
and no one in the government had the right to reveal it.

Virtually all the names of covert agents in the CIA are classified,
and the CIA goes to some effort to keep them classified. They
refuse all Freedom of Information Act requests, they refuse (and
courts uphold) to provide such information in discovery connected
to lawsuits.

Broadly speaking, covert agents (and their informants) fall
under the State Secrets privilege. A federal statute requires
that "the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from unauthorized
disclosure." It is not, in other words, an option for the
CIA to decide to reveal an agent's activities.

And of course, there's are many good reasons for this - relating
not only to the agent, but also to national security. As CIA
Director Turner explained in a lawsuit in 1982, shortly after
the Intelligence Identities Act became law, "In the case
of persons acting in the employ of CIA, once their identity is
discerned further damage will likely result from the exposure
of other intelligence collection efforts for which they were
used."

The White House's Unusual Stonewalling About an Obvious Leak

In the past, Bush and Cheney have gone ballistic when national
security information leaked. But this leak - though it came from
"two senior administration officials" - has been different.
And that, in itself, speaks volumes.

On July 22, White House press secretary Scott McClellan was
asked about the Novak column. Offering only a murky, non-answer,
he claimed that neither "this President or this White House
operates" in such a fashion. He added, "there is absolutely
no information that has come to my attention or that I have seen
that suggests that there is any truth to that suggestion. And,
certainly, no one in this White House would have given authority
to take such a step."

So was McClellan saying that Novak was lying - and his sources
were not, in fact, "two senior administration officials"?
McClellan dodged, kept repeating his mantra, and refused to respond.

Later, McClellan was asked, "Would the President support
an investigation into the blowing of the cover on an undercover
CIA operative?" Again, he refused to acknowledge "that
there might be some truth to the matter you're bringing up."
When pressed further, he said he would have to look into "whether
or not that characterization is accurate when you're talking
about someone's cover."

McClellan's statement that he would have to look into the
matter was disingenuous at best. This ten-day old column by Novak
had not escaped the attention of the White House. Indeed, when
the question was first raised, McClellan immediately responded,
"Thank you for bringing that up."

As David Corn has pointed out, what McClellan did not say,
is even more telling than what he said. He did not say he was
trying to get to the bottom of the story and determine if it
had any basis in fact. He did not say the president would not
tolerate such activities, and was demanding to know what had
happened.

Indeed, as Corn points out, McClellan's remarks "hardly
covered a message from Bush to his underlings: don't you dare
pull crap like this." Indeed, they could even be seen as
sending a message that such crimes will be overlooked.

Frankly, I am astounded that the President of the United States
- whose father was once Director of the CIA - did not see fit
to have his Press Secretary address this story with hard facts.
Nor has he apparently called for an investigation - or even given
Ambassador and Mrs. Wilson a Secret Service detail, to let the
world know they will be protected.

This is the most vicious leak I have seen in over 40 years
of government-watching. Failure to act to address it will reek
of a cover-up or, at minimum, approval of the leak's occurrence
- and an invitation to similar revenge upon Administration critics.

Congressional Calls For Investigation Should Be Heeded

Senator Dick Durbin (D - IL) was the first to react. On July
22, he delivered a lengthy speech about how the Bush Administration
was using friendly reporters to attack its enemies. He knew this
well, because he was one of those being so attacked.

"Sadly, what we have here," Durbin told his colleagues,
"is a continuing pattern by this White House. If any Member
of this Senate - Democrat or Republican - takes to the floor,
questions this White House policy, raises any questions about
the gathering of intelligence information, or the use of it,
be prepared for the worst. This White House is going to turn
on you and attack you."

After Senator Durbin set forth the evidence that showed the
charges of the White House against him were false, he turned
to the attacks on Ambassador and Mrs. Wilson. He announced that
he was asking the chairman and ranking member of the Senate Intelligence
Committee to investigate this "extremely serious matter."

"In [the Administration's] effort to seek political revenge
against Ambassador Wilson," Durbin said, "they are
now attacking him and his wife, and doing it in a fashion that
is not only unacceptable, it may be criminal. And that, frankly,
is as serious as it gets in this town."

The House Intelligence Committee is also going to investigate
the Wilson leak. "What happened is very dangerous to a person
who may be a CIA operative," Congressman Alcee Hastings
(D - FL), a member of the Committee, said. And the committee's
chairman, Porter Gross (R- FL), a former CIA agent himself, said
an investigation "could be part of a wider" look that
his committee is taking at WMD issues.

In a July 24 letter to FBI Director William Mueller, Senator
Charles Schumer (D -NY) demanded a criminal investigation of
the leak. Schumer's letter stated, "If the facts that have
been reported publicly are true, it is clear that a crime was
committed. The only questions remaining to be answered are who
committed the crime and why?"

The FBI, too, has confirmed that they are undertaking an investigation.

But no one should hold their breath. So far, Congress has treated
the Bush Administration with kid gloves. Absent an active investigation
by a grand jury, under the direction of a U.S. Attorney or special
prosecutor, an FBI investigation is not likely to accomplish
anything. After all, the FBI does not have power to compel anyone
to talk. And unless the President himself demands a full investigation,
the Department of Justice is not going to do anything - unless
the Congress uncovers information that embarrasses them into
taking action.

While this case is a travesty, it won't be the first one that
this administration has managed to get away with. Given the new
the nadir of investigative journalism, this administration has
been emboldened. And why not? Lately, the mainstream media has
seemed more interested in stockholders than readers. If Congress
won't meaningfully investigate these crimes - and, indeed, even
if it will - it is the press's duty to do so. Let us hope it
fulfills that duty. But I am not holding my breath about that,
either.

Copyright &COPY; 1994-20031 FindLaw

Before becoming Counsel to the President of the United States
in July 1970 at age thirty-one, John Dean was Chief Minority
Counsel to the Judiciary Committee of the United States House
of Representatives, the Associate Director of a law reform commission,
and Associate Deputy Attorney General of the United States. He
served as Richard Nixon's White House lawyer for a thousand days.

He did his undergraduate studies at Colgate University and
the College of Wooster, with majors in English Literature and
Political Science. He received a graduate fellowship from American
University to study government and the presidency, before entering
Georgetown University Law Center, where he received his JD in
1965.

John has written many articles and essays on law, government
and politics. He has recounted his days in the Nixon White House
and Watergate in two books, Blind Ambition (1976) and Lost Honor
(1982). He is often called upon by newspapers, national magazines,
and television news for information and comments relating to
Watergate, presidential politics, and White House activities.

John lives in Beverly Hills, California with his wife Maureen.
He works as writer, lecturer and private investment banker. He
recently published "The Rehnquist Choice: The Untold Story
of the Nixon Appointment that Redefined the Supreme Court".
Also see John Dean's e-book "Unmasking Deep Throat".